JUDGMENT Hon'ble Pankaj Naqvi, J.—Appellant Satish Chandra was put on trial for committing offence under Section 302/34 IPC in S.T. No. 1938/1999. Similarly, his sons Nishant and Prashant were also tried for committing the aforesaid offence in S.T. No. 136 of 2000. Both the session trials came to be decided by the Court of Sessions Judge, Ghaziabad on 27.5.2010, convicting them under Sections 302/34 IPC. After hearing them on sentence, the trial Court on 29.5.2010, held that Prashant was a juvenile in conflict with law within the meaning of Section 2(1) of Juvenile Justice (Protection and Care of Children) Act, 2000, as such, his case was referred to Juvenile Board, Meerut under Section 20 of the Act for appropriate orders on sentence, but Satish Chandra and Nishant were sentenced for rigorous imprisonment for life alongwith fine of Rs. 50,000/- each in respect of the above count. 2. Nishant challenges his conviction and sentence in Criminal Appeal No. 3840 of 2010 and Satish Chandra does so in Criminal Appeal No. 3993 of 2010. 3. The case has its genesis in a written report dated 8.7.1999 (Ex.ka-7) lodged by Chandrabhan (PW-1) and scribed by one Sukhan Singh (not examined), wherein it was stated that the brother of the informant Surajbhan was a bachelor; the accused-appellants conspired to obtain a sale-deed in respect of the share of his brother Surajbhan about seven months ago in respect of which, litigation was pending; on the fateful day at about 3 p.m., the appellants forcibly started ploughing the fields of the informant and on a protest made by Surajbhan, the appellants displayed belligerence. On noticing belligerent behaviour, Surajbhan screamed for help, as a result of which the informant (PW-1), his wife Smt. Rohtas (PW-3), Bhajju Singh (PW-2) (Mausa of PW-3) ran from the house to see that Nishant was armed with a country-made pistol, Satish with ballam (spear) and Prashant Kumar with lathi; Satish Chandra was exhorting his sons to catch-hold of Surajbhan and he be put to death; on exhortations, Nishant Kumar and Prashant Kumar caught-hold of Surajbhan and Satish Kumar inflicted spear blows, due to which Surajbhan died at the spot. This incident was witnessed by numerous persons in the village and when the informant proceeded to nab the accused, they ran away in the fields firing shots. 4. On the basis of the written report, PW-5, Changa Singh registered the FIR (Ex. This incident was witnessed by numerous persons in the village and when the informant proceeded to nab the accused, they ran away in the fields firing shots. 4. On the basis of the written report, PW-5, Changa Singh registered the FIR (Ex. Ka-3) under Section 302/504 IPC against the appellants, drew copies thereof and the contents of the same were also recorded in general diary on the same date at entry No. 34 at 4 pm. PW-6 Subhash Narain Yadav was the SHO of PS Garhmukteshwar. On registration of the FIR, he proceeded for the spot and carried out the inquest (Ex.ka-4) under the directions of SI R L Yadav (CW-1). CW-1 also prepared the dead body challan (Ex.ka-6), sketch of the dead body (Ex.ka-7) and letters for CMO (Ex.ka-8). PW-6 verified the signatures of CW-1 on the documents prepared by him. He also collected ordinary earth and blood-stained earth from the spot and prepared a fird under the signatures of R L Yadav (CW-1), which was marked as (Ex.ka-9). On the same date, he recorded the statements of the various witnesses, carried out a spot inspection and prepared a site plan (Ex.ka-10). He, on 23.7.1999 in the presence of two public witnesses, recovered the ballam (spear) at the pointing out of accused Satish from the sugarcane fields of Sunil and a fird (Ex.ka-11) was prepared. After closure of investigation, a charge-sheet was submitted under Section 302/34 IPC and the case was put to trial. 5. The prosecution, in support of its case, examined PW-1 Chandrabhan, an eye-witness of the incident. PW-2 Bhajju Singh also claims himself to be an eye-witness, is the mausa of the wife of the informant/Chandrabhan. PW-3 Smt. Rohtas, is the wife of informant (PW-1). PW-4 Kunwar Pal Singh, Constable, carried the dead body for postmortem. PW-5 SI Chhanga Singh, registered the FIR at PS Garhmukteshwar, Ghaziabad. PW-6 S N Yadav, was the IO of the case. PW-7 Dr. Vinay Bhargava, conducted the autopsy of the deceased. R L Yadav (CW-1) Sub-inspector posted at PS Garhmukteshwar, held the inquest (Ex.ka-4) of the deceased and prepared other documents pertaining to the investigation of the case under the directions of S N Yadav (PW-6). 6. The accused-appellant denied their role in commission of the offence and alleged false implication on account of purchase of land under the sale-deed alleged to have been executed by Surajbhan (deceased). 7. 6. The accused-appellant denied their role in commission of the offence and alleged false implication on account of purchase of land under the sale-deed alleged to have been executed by Surajbhan (deceased). 7. It was submitted by Sri P N Misra, learned Senior Counsel assisted by Sri Rahul Misra for the appellants that the FIR was ante-timed; the eye-witnesses were close family relatives, there being no independent witnesses, the presence of the alleged witnesses at the scene of occurrence was highly doubtful, even though the alleged incident was said to have taken place in broad day light in public gaze. He further submitted that there was a strong motive to falsely implicate the accused-appellants as they had obtained a registered sale-deed in respect of the share of deceased Surajbhan. He finally submitted that all the witnesses were inside the house of the informant and could not have witnessed the alleged incident. 8. Sri A N Mulla, learned AGA submitted that PW-1, PW-2 and PW-3 were reliable and trustworthy witnesses whose clinching evidence had established the role of the accused in the commission of offence beyond a reasonable doubt. 9. The genesis of the dispute appears to be relating to agricultural property. Surajbhan, deceased was having a share in a joint holding, who is alleged to have executed a sale-deed on 23.12.1998 in favour of accused persons. PW-1 and PW-3 had obtained a Will in favour of their son Brij Mohan, from father of PW-1, i.e., Mangu Singh. As Brij Mohan was claiming rights on the basis of Will, he through his real mother after the death of grand father, challenged the sale-deed executed by his uncle Surajbhan in favour of accused persons in O.S. No. 114/1999, in which the date fixed was 8.7.1999, the date on which the alleged incident is said to have taken place. A perusal of the plaint (Ex. Kha-11) would indicate that the plaintiff of the suit was Brij Mohan through his real mother. The defendants were Nishant and Prashant, i.e., the appellants of the present appeal and Surajbhan (deceased) and Chandrabhan (PW-1), brother of Surajbhan (deceased). Perusal of order sheet (Ext. 127/kha/2) dated 8.7.1999 indicates that Surajbhan, deceased had been served with the summons in the suit. Kha-11) would indicate that the plaintiff of the suit was Brij Mohan through his real mother. The defendants were Nishant and Prashant, i.e., the appellants of the present appeal and Surajbhan (deceased) and Chandrabhan (PW-1), brother of Surajbhan (deceased). Perusal of order sheet (Ext. 127/kha/2) dated 8.7.1999 indicates that Surajbhan, deceased had been served with the summons in the suit. The plaint alleges that in view of the Will dated 14.6.1997 executed by Mangu Singh, half share of the scheduled property was bequeathed to the plaintiff Brij Mohan s/o PW-1 and PW-3 and other half to PW-1 (father of plaintiff). The plaint also alleges that on the basis of Pa Ka-11 entry in the revenue records a sale-deed was executed by Surajbhan, deceased in favour of accused persons on 23.12.1998 to the detriment of the plaintiff, compelling the plaintiff Brij Mohan to file a suit for cancellation of sale-deed dated 23.12.1998. 10. PW-1 and PW-3 are unanimous in their testimony that a suit for cancellation and injunction had been filed by the informant in respect of the sale-deed dated 23.12.1998 allegedly executed by Suraj Bhan, deceased in favour of the appellants, which was pending on the date of incident, i.e., 8.7.1999. PW-1 was stating at page 16 of the paper book that Suraj Bhan, deceased too had filed a suit for cancellation of the sale-deed, and the date fixed was 8.7.1999, but in the same breath he also states that 8.7.1999 was the date fixed in a suit filed by his wife. As no copy of the plaint of the alleged suit filed by Suraj Bhan, deceased was brought on record and on the contrary the only plaint on record is of O S No. 114 of 1999 filed by Smt. Rohtas through her son, this Court can draw an inference that no such suit as was alleged to have been filed by Suraj Bhan, deceased was pending on the date of incident. Thus, the only suit, which was pending as on the date of incident, i.e., 8.7.1999 was a suit filed by PW-3 (Smt. Rohtas), through her minor son, challenging the execution of the sale-deed allegedly executed by her brother-in-law Suraj Bhan, deceased in favour of the appellants. Both PW-1 and PW-3 also admit that the place of occurrence was situated at a distance of 100-150 yards from their house and was surrounded by an abadi. Both PW-1 and PW-3 also admit that the place of occurrence was situated at a distance of 100-150 yards from their house and was surrounded by an abadi. PW-3 also admitted that no mutation in favour of her son in respect of Will executed by her father-in-law Mangu Singh had been recorded and on the contrary mutation of the names of the appellants, on the basis of alleged sale-deed executed in favour of the appellants, had already been recorded, as may appear from page 40 of the paper book. 11. To recapitulate, PW-1 stated that it was the cries for help that attracted his attention while he was sitting in his house alongwith his wife (PW-3) and her mausa (PW-2). However, he was candid enough to state that he could not recognise the voice. On the contrary, PW-3 stated that she heard the cries of her brother-in-law, which she could recognise. On hearing the cries, PW-1, PW-2 aged 80 years and PW-3 proceeded for the site of occurrence, which is situated at a distance of 100-150 yards. Time taken to reach the site was approximately 5 minutes. PW-1 was stating that by the time he reached the site of occurrence, the deceased had already fallen on the ground as a result of spear blow, but they had seen the accused persons assaulting the deceased from a distance. He was also stating that this incident apart from him was also witnessed by numerous persons of the village whose names he could not recollect, but at the same time at page 22 of the paper book, he was also stating that the public assembled at the site only after the occurrence had taken place and that none had reached before him. PW-1 also stated that the incident was witnessed apart from other persons by Nand Kishore (nephew), but he was not examined. 12. PW-3 also stated that at the time of occurrence, gaderias and kumhars had also arrived, but surprisingly neither any explanation was given for their non-examination nor were they produced as witnesses. PW-1 also stated that the incident was witnessed apart from other persons by Nand Kishore (nephew), but he was not examined. 12. PW-3 also stated that at the time of occurrence, gaderias and kumhars had also arrived, but surprisingly neither any explanation was given for their non-examination nor were they produced as witnesses. Another important contradiction between PW-1 and PW-3 was that PW-1 at page 15 of the paper book was stating that Suraj Bhan, deceased did not possess any tractor at the time of the occurrence and that he did not sell off the same as alleged by the defence after about 1 ½ years of the occurrence at the time of his daughter’s marriage, whereas PW-3, his wife was stating at page 43 of the paper book that on the date of occurrence, the aforesaid tractor of Suraj Bhan, deceased was in the village, which after his death was sold off by her husband before the marriage of their daughter. Thus both PW-1 and PW-3, being the husband and wife, were taking a complete divergent stand on a material aspect. Yet another glaring fact disclosed by PW-3 was that the deceased had become a person of unsound mind and, therefore, with a view to prevent further fraudulent sale-deed, she got two sale-deeds dated 28.12.1998 and 29.12.1998 executed in favour of her minor son, whereas PW-1, did not utter a single word about the insanity of his deceased brother. PW-3 at page 37 of the paper book, stated that upon receiving information that the appellants were forcibly ploughing the fields, Suraj Bhan, deceased alone proceeded for his bara to persuade the appellants not to do so. The name of the person, who brought this information was neither disclosed nor were these persons examined. Had the relations been cordial between the informant and the deceased, the latter would not have been permitted to go unarmed and moreover, once the deceased had already executed a sale-deed in favour of the appellants, whose names had been recorded in the revenue records, and there being no challenge to the sale-deed by the deceased, there was no occasion for the deceased to prevent the appellants from ploughing the fields and for him to be present at the scene of occurrence. No doubt, the body of the deceased was found at the scene of occurrence, but that by itself would not be sufficient to implicate the appellants for alleged murder, as the presence of the appellants at the scene of occurrence appears to be extremely doubtful. 13. Considering the evidence of PW-1 and PW-3 as a whole, we find that there were inherent contradictions on most material aspects of the commission of the crime as they were not speaking in tandem. On these facts, we are of the view that in the absence of examination of any independent witnesses, who were available, but yet not examined, it would be highly unsafe to act upon the testimony of PWs 1 and 3, whom we do not hold as trustworthy and reliable witnesses. 14. We do not attach any importance to PW-2, who was aged 80 years at the time of occurrence, as he is alleged to have fainted at the scene of occurrence and remained unconscious throughout night and left 2-3 days after the incident for his native village. He neither approached the I.O. for recording his statement nor did the I.O. recorded his statement and on the contrary he straightway entered the witness box. In these circumstances, we also do not hold him to be a reliable and trustworthy witness. 15. The alleged sale-deed is said to have taken place at 3 pm and the report was lodged at 4 pm on the same date, i.e., 8.7.1999 itself. PW-3 at page 35 of the paper book stated that Sukhan (nephew of PW-1) was called on telephone, who was residing at village Nekpur to scribe the report. However, after scanning the evidence, we find that there was no cross-examination on vital aspects, such as, phone call to Sukhan, time taken by him to travel from his native village Nekpur to village Khilwai and his presence in village Khilwai on the date of incident, etc. Thus, in these circumstances, we cannot hold the FIR to be ante-timed. The mention of crime number in the inquest, irrespective of any discrepancy of the penal provisions, would not by itself mean that the FIR was ante-timed and on the contrary same would suggest that the FIR had already come into existence by time the inquest was conducted. 16. Thus, in these circumstances, we cannot hold the FIR to be ante-timed. The mention of crime number in the inquest, irrespective of any discrepancy of the penal provisions, would not by itself mean that the FIR was ante-timed and on the contrary same would suggest that the FIR had already come into existence by time the inquest was conducted. 16. The trial Court was of the view that as the alleged incident took place at 3 pm on a hot summer day, wherein most of the people prefer to stay indoors, would not be of consequence as PWs 1 and 3 had already admitted that there were other persons including the nephew of PW-1, i.e., Natthu, who was not produced in the witness box. The inference raised by the trial Court may have had relevance if the prosecution had denied the existence of any other witnesses at the time of the occurrence, but once they admitted that there were numerous persons of the village, such as, gaderias (shepherds) and kumhars (potters), including their nephew Natthu, then in the absence of any explanation from prosecution as regards their non-availability and non-examination an inference can be drawn that none was present at the scene of occurrence. 17. The entire occurrence seems to have been orchestrated on account of the fact that the deceased had executed a sale-deed in favour of the accused persons to the detriment of the interest of the informant, who were claiming rights on the basis of a Will executed by Mangu Singh. However, on acquiring knowledge of the sale-deed in favour of the appellants, a suit for cancellation of sale-deed had been filed by the wife of the informant through her son impleading the appellants and the deceased brother and her husband as defendants to the suit. With a view to prevent further execution of the sale-deed at the instance of deceased, two sale-deeds are alleged to have been executed by the deceased in favour of minor son. With a view to prevent further execution of the sale-deed at the instance of deceased, two sale-deeds are alleged to have been executed by the deceased in favour of minor son. We find that once relations between the informant and the deceased had become strained, after PW-3 had to file a suit for cancellation of a sale-deed against the deceased and the appellants and the deceased not having filed any suit for cancellation of the sale-deed, which was alleged to have been executed in favour of the appellant leads to a probability that the relations between the informant and the deceased were far from cordial. Against this backdrop, to accept that the deceased would execute two more sale-deeds voluntarily in favour of the informant in respect of lands situate at Saugarh and Kalyanpur, would be a contradiction in itself. 18. It is trite in law that in a case of direct evidence, as was the present case, motive is of not any consequence, but where the prosecution alleges motive for commission of a crime, then it goes without saying that it becomes imperative for the prosecution to establish motive. Going by the FIR, we find that it was alleged that the appellants had committed the murder of the deceased as the former had obtained a fraudulent sale-deed from the latter. We do not agree with the motive attributed by the informant, for the reason that once the appellants had obtained a registered sale-deed in their favour and their names had been recorded in the revenue records, the deceased not having filed any suit for cancellation of the said sale-deed, the said facts cumulatively taken, could not constitute a motive for the appellants to eliminate the deceased. On the contrary, motive if any, for eliminating the deceased may be of the informant and not of the accused persons as the informant had been deprived of their land under the sale-deed, which otherwise they were claiming under a Will. 19. Considering the totality of the evidence on record, we are of the considered opinion that the prosecution could not establish its case beyond a reasonable doubt. 20. The appeals are allowed. The judgment of conviction and order of sentence passed by the Trial Court is set aside. Appellants Satish Chandra and Nishant are acquitted of the offences charged. We find Nishant is on bail. 20. The appeals are allowed. The judgment of conviction and order of sentence passed by the Trial Court is set aside. Appellants Satish Chandra and Nishant are acquitted of the offences charged. We find Nishant is on bail. He stands discharged from the liability of his bail-bonds. Satish Chandra is in custody. He be released forthwith, if not wanted in any other case. —————